90 PHILLIPS V. PHILLIPS [241 PHILLIPS 't'. PHILLIPS 5-3925 406 S. W. 2d 325 Opinion delivered September 26, 1966 1. DIVORCE—CUSTODY OF CHILDREN, MODIFICATION OF ORDER FOR— WEIGHT & SUFFICIENCY OF EVIDENCE.—Chancellor's finding that there was such a change in conditions as to warrant a change in custody was not contrary to the weight of the evidence. DIVORCE—CUSTODY OF CHILDREN—BEST INTEREST OF CHILD AS GROUND FOR MODIFYING ORDER.—Chancellor did not err in finding that it would be to the best interest of a child of tender years for custody to be awarded to the mother in view of the evidence.
ARK.] PHILLIPS V. PHILLIPS 91 Appeal from Clay Chancery Court, Eastern District, Gene Bradley, Chancellor ; affirmed. Gus R. Camp. and E. L. Holloway, for appellant. Dudley & Burris, for appellee. PAUL WARD, Justice. This is an appeal from a decree changing the custody of a young child from the father to the mother. A summary of the material facts and circumstances leading to this appeal is set forth below. Background Facts. The parties were married in July 1959. Some three years later a daughter, Lesa Loeta, was hnrn to th P union. It appears from the record that the parties were under twenty years of age when they married. When Lesa Loeta was about two years old the parties separated, and were divorced on April 24, 1964. In accord with a written agreement, entered into on April 10, 1964 by the parties (approved by the court), the custody of Lesa Loeta was awarded to appellant— the father. Petition for change of custody. On March 29, 1965 appellee (the mother) filed a petition asking the chancery court to award to her the custody of the child. In support of the petition it was alleged that at the time of the divorce decree she had "no employment or income," but that since that time she has completed a course in cosmetology and is licensed as a beautician from the State of Arkansas and from the State of Missouri ; that she is steadily and gainfully employed, operating a beauty shop. In reply to the above petition appellant alleged; (a) there had been no change in circumstances since the divorce decree, and ; (b) it would be to the "best interest of the minor child for the custody order to remain as it is . . . ."
92 PHILLIPS V. PHILLIPS 1:241 For a reversal, appellant urges only two specific grounds : One, "there has been no change in circumstances," and; Two, "the change of custody was not for the best interest of the child." After a careful stud y of the record and our applicable decisions we are unable to agree with appellant on either ground, and therefore conclude the trial court must be affirmed. One. The undisputed testimony shows that there, has been a material change in circumstances since the original decree. At that time appellee was not able to support the child and had no place to keep her. At this time appellee has completed a course in cosmetology and is now a licensed beautician in Arkansas and Missouri. Now she is steadily and gainfully employed, conducting her own shop in Williamsville, Ark. She has a place for her daughter to live with her. The ease of Hamilton v. A nde rson;- 176 Ark.- 76, -2-S. W.2d 673- presents_ a_situar tion similar to the one here presented. There, the court awarded part time custod y of two girls (ages 6 & 8) to the father, but refused later to award custody to the mother who had employment and a home in which to keep the children. On appeal this Court reversed the trial court and gave custody to the mother. In doing so it was stated: "We think, however, that the testimony does show such conditions as warrant a change of custody." In the case before us the trial court found there was such a change in conditions as to support a change in custody, and we are unwilling to say any such finding was contrary to the weight of evidence. Two. Likewise, we think the trial court must be sustained in finding the change of custody was in the best interest of Lesa Loeta. We have many times followed the well established rule, in cases of this nature, that the chancellor must keep in view primarily the welfare of the child. Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817. We have also many times recognized that this rule operates favorably to the mother as the custodian
ARK.] PHILLIPS /). PHILLIPS 93 where the child is of tender years. See: Beene v. Beene, 64 Ark. 518, 43 S. W. 968; Minn v. TV ann, 85 Ark. 471, 108 S. W. 1052; Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1, and; Taylor v. Taylor, 163 Ark. 229, 259 S. W. 395. In the Beene'case we said: "... but the younger of the boys, not yet five years old, it seems to us, is in special need of a mother's control—that care and control which a father is ill suited by nature to exercise." In the "Vann case it was stated: "They have only one child, a little girl, named Virgie May. She is about six years old, of that ago whorl she needs the pare of a mother." In the Meffert ease there appears this statement: "Considering her tender age [S] and the fact that she needs a mother's care, we do not think the chancellor erred in awarding her custody to the mother." In the Tanlor case there is the following statement: "The child's age rgirl 51 is such that a mother's care is very necessary, and we think the custody should be awarded to the mother." The rule set forth above has been many times reaffirmed in more reoent oases. Finding no reversible error the decree appealed from is accordingly affirmed. Affirmed.
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